Joseph Canada v. SAMUEL GROSSI & SONS, INC. On Appeal from the District Court for the Eastern…

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 20-2747
_____________
JOSEPH CANADA,
Appellant
v.
SAMUEL GROSSI & SONS, INC.
________________
On Appeal from the District Court for the
Eastern District of Pennsylvania
(D.C. No. 2-19-cv-01790)
District Judge: Hon. Jan E. DuBois
________________
Argued on May 27, 2021
Before: McKEE, RESTREPO, and FUENTES, Circuit
Judges
(Opinion filed: September 15, 2022)
Timothy S. Seiler (Argued)
Karpf Karpf & Cerutti
3331 Street Road
Suite 128, Two Greenwood Square
Bensalem, PA 19020
Counsel for Appellant

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Brad M. Kushner (Argued)
Stevens & Lee
1500 Market Street
Centre Square
East Tower, Suite 1800
Philadelphia, PA 19102
Counsel for Appellee
________________
OPINION OF THE COURT
________________
McKEE, Circuit Judge
Joseph Canada appeals the District Court’s dismissal of
his retaliation claims against Samuel Grossi and Sons, Inc.
(“Grossi”), his former employer. The claims were brought
under Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 1981,
the Americans with Disabilities Act (“ADA”), and the Family
Medical Leave Act (“FMLA”). Although Grossi argued that it
fired Canada for misconduct that was discovered during a
search of his cellphone, Canada claims Grossi’s true motive for
firing him was retaliation for actions that were protected under
the aforementioned statutes. For the reasons that follow, we
will reverse the District Court’s grant of summary judgment to
Grossi on Canada’s retaliation claims arising from his final
termination and remand for further proceedings consistent with
this opinion.
I.
Canada, a Black man, worked for Grossi, a steel
producer, for 10 years.1 Canada suffered from “serious back
1 We review a grant of summary judgment de novo.
Scheidemantle v. Slippery Rock Univ. State Sys. of Higher
Educ., 470 F.3d 535, 538 (3d Cir. 2006). Here, the District
Court granted Grossi’s motion for summary judgment.
Canada v. Samuel Grossi & Sons, Inc., 476 F. Supp. 3d 42,
56 (E.D. Pa. 2020) (“Dist. Ct. Op.”). Therefore, we present
the facts in the light most favorable to Canada.

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problems,” including herniated discs and arthritis.2 These back
problems formed the basis of the disability discrimination
claims outlined in his original complaint. Canada claims that
throughout his tenure, Grossi management prevented him from
accessing forms pertaining to the FMLA and harassed him
when he tried to use FMLA leave for his back problems.3
Canada eventually obtained FMLA forms on his own.
Thereafter, he would notify Grossi management that he was
claiming FMLA leave during his absences from work. Elena
Osorio, Grossi’s director of human resources, testified that she
never approved FMLA leave for Canada, but that Canada
“took FMLA how he wanted,”4 and she “let [Canada] take his
FMLA” leave, and did not assess any attendance points against
him for doing so.5
Occasionally, when demand for Grossi’s products was
low, Grossi ordered temporary layoffs. The layoffs, governed
by a Collective Bargaining Agreement (“CBA”) between
Grossi and a labor union, occurred in order and in preference
of seniority.6 On one such occasion, Canada was laid off, but
only for a day.7 He promptly returned to work with the same
pay and benefits he enjoyed prior to his layoff.8
2 JA 5.
3 See 29 U.S.C. § 2601 et seq.
4 JA 289.
5 JA 290.
6 Canada was a member of the Shopmen’s Local Union No.
502 of the International Association of Bridge, Structural,
Ornamental and Reinforcing Iron.
7 We need not consider the merits of this first layoff because
the retaliation claims were brought only in connection to the
second termination. We note, however, on its face, this one-
day layoff is consistent with the workforce reduction policy
under the CBA.
8 The CBA allows more senior employees in one unit to
“bump” less senior employees in other units, rather than be
laid off themselves as long as the more senior employee is
“immediately able to perform the work.” JA 8. In March
2018, Grossi temporarily laid off twenty-three employees,
including Canada. Canada attempted to avoid the layoff by
“bumping” a less senior worker in the paint shop, but Grossi
refused to allow him to bump due to a doctor’s note that he

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In March 2019, the same month as Canada’s one-day
layoff, Canada “filed a charge . . . with the EEOC . . . outlining
the discrimination and retaliation he [claimed he] had been
experiencing.”9 A month later, in April, “[d]ue to the [alleged]
continued discriminatory and retaliatory treatment from . . .
management,” Canada filed the first complaint in the District
Court, alleging race discrimination, retaliation, and a hostile
work environment under Title VII, § 1981, the ADA, and the
FMLA.10 After filing his lawsuit against Grossi, John Grossi,
offered months before. The note explained that he must be
excused from working with paint due to his health. Upon
submitting the note, Canada was transferred out of the paint
shop to work as a machine operator.
Right before the scheduled layoff, Canada presented
Grossi with another note from a different doctor that stated in
its entirety: “Joseph Canada may work around paint.” JA 9.
Canada testified that he procured this letter to shield against
the impending layoff. Grossi, however, did not accept the
note because “it [didn’t] say anything about [Canada’s]
previous issue” and “the doctor that wrote [the second note
didn’t] have the medical history to approve” his transfer back
to the paint department. JA 9 (second alteration added).
9 Appellant Br. at 16; see also JA 67. Canada alleges that he
was subject to discrimination and a hostile work environment
at Grossi based on his being a Black man. In a deposition,
Canada testified that between March 2018 and July 2019,
various co-workers and superiors used the word “nigger” in
the workplace. JA 115. He testified that his co-worker called
him nigger twice. JA 115 (explaining that in March 2018, his
co-worker called him a “fucking nigger” after he accidently
knocked over the co-worker’s radio, and then in February
2019, he called him it a second time). In fact, when Canada
complained to Osorio about this co-worker, Osorio expressed
that she saw no issue. Specifically, Canada testified that she
told him that she and her sister “dated black guys and [have]
said, ‘nigger’ before.” JA 115.
10 JA 68; see also JA 41-60 (first civil action complaint).
Ultimately, Canada filed his Second Amended Civil Action
Complaint in November 2019. He alleged race
discrimination, retaliation, and hostile work environment
under both Title VII of the Civil Rights Act of 1964, 42

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one of the company’s owners, approached him and threatened
that if he did not drop the lawsuit, “I’ll [ ] just have other
African-American employees say the opposite of what you’re
saying.”11 Canada was terminated a month later, in July 2019.
Grossi based the termination on text messages that
management found on Canada’s cellphone. The incident that
led to the discovery of these text messages is at the heart of this
appeal. Canada testified that he used a locker on the shop floor
at Grossi to store his personal items, including his tools,
clothes, and cellphone, and that he secured the locker with his
personal lock, not a work-issued lock. According to Canada,
“every operator,” such as himself, “had their own locker,”
either in the locker room or shop floor, for personal storage.12
This was a mutually-respected arrangement, Canada said,
among the employees and the company, and that his locker was
no exception.13 Moreover, Canada explained that because
Grossi did not supply tools to its employees, they were required
to bring their own. “That’s why,” Canada emphasized, it was
necessary that operators “got their own lockers” for
safekeeping of their belongings.14 Grossi, on the other hand,
alleges that personal lockers were located elsewhere, and that
Canada was using a locker on the shop floor which was
designated as a company tool locker.
While Canada was on vacation in July, Grossi cut the
padlock off of his locker and searched it. Grossi claimed that
the lockers on the shop floor needed to be moved that day
U.S.C. § 2000(d) et seq. (Count I) and 42 U.S.C. § 1981
(Count II); actual and perceived disability discrimination,
retaliation, hostile work environment, and failure to
accommodate under the ADA, 42 U.S.C. § 12101 et seq.
(Count III); retaliation and unlawful interference under the
FMLA, 29 U.S.C. § 2601 et seq. (Count IV); unlawful access
to stored communications under Pennsylvania’s Wiretapping
and Electronic Surveillance Control Act, 18 Pa. Cons. Stat. §
5741 et seq. (Count V); and invasion of privacy under state
common law (Count VI).
11 JA 153.
12 JA 142.
13 JA 142-43.
14 JA 143.

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because they were blocking a surveillance camera. Despite
using a forklift to move the lockers, Grossi alleged that all of
the contents of the lockers had to be emptied before moving
them. Because Canada was not at work, a Grossi employee cut
the lock on his locker and removed its contents, including
Canada’s personal items and his cellphone. Osorio saw the
cellphone and testified that she believed that the phone may
have been a company phone “[b]ecause it’s a Samsung” and
Grossi had issued other employees Samsung cellphones.15
According to Osorio, she guessed the phone’s password on her
first try. Later that day, she searched the phone to “find out if
it was a company phone.”16
In her review of the text messages, Osorio found
messages from more than a year earlier in which Canada
appeared to have solicited sex from prostitutes. In comparing
the time records of his text messages to his work hours, Osorio
and John Grossi “determined [in their opinion] that he had
been soliciting prostitutes while at work and clocked in.”17
Concluding that solicitation of prostitutes during company
time violated Grossi’s Employee Conduct and Disciplinary
Action Policy, Grossi immediately fired Canada. That policy
forbids “[u]nlawful conduct which adversely affects the
employee’s relationship on his/her job, fellow employees,
supervisor and/or damages the Company’s property, reputation
or goodwill in the community” and “[i]mmoral or indecent
conduct.”18
Canada, however, claimed that he was not soliciting
prostitutes, never met with any of the women, and the texting
was simply “dumb entertainment.”19 After being terminated,
Canada amended his previously filed complaint to allege that
his termination was retaliation for his complaints of race and
disability discrimination.
The District Court granted summary judgment to Grossi
on all of Canada’s claims. In addressing Canada’s
15 JA 303.
16 JA 303.
17 JA 12 [alteration in original].
18 JA 12; 648-649.
19 JA 12; 147-48.

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discrimination claims, it stated: Canada “argues that
defendant’s reason for terminating his employment was
pretextual because defendant’s explanation for entering the
locker is “‘unbelievable’ and that Osorio’s reason for going
through the phone ‘to find out if it was a company phone’ is
also ‘unbelievable.’”20 The District Court concluded,
“[h]owever, [that] these arguments relate to the propriety of the
search of plaintiff’s cellphone, not whether defendant
terminated plaintiff’s employment for appearing to solicit
prostitutes while clocked in and on company property.”21 The
District Court found that “[n]o reasonable jury could conclude
that defendant’s proffered nondiscriminatory and
nonretaliatory reason for terminating plaintiff’s employment
was pretextual.”22 This appeal followed.23
II.
Although Canada makes several arguments on appeal,
they all focus on his contention that the stated grounds for his
termination were pretext for illegal retaliation for his
complaints of race and disability discrimination. Accordingly,
we need only address whether the District Court erred in
granting Grossi summary judgment on Canada’s claim that
Grossi’s professed justification for terminating him was pretext
for a retaliatory motive.
“We review the grant or denial of summary judgment
de novo.”24 Our focus is the same as the District Court: We
20 Dist. Ct. Op. at 56; JA 18.
21 Id.
22 Id. The court also concluded that the search was not
improper and that it did not violate Pennsylvania privacy
laws. Id. at 63-65. This appeal does not address the District
Court’s denial of the claims Canada brought under
Pennsylvania state privacy laws because he did not appeal
them.
23 The District Court had jurisdiction under 28 U.S.C. §1331
because the claim arose under federal law. We have
jurisdiction over appeals from all final decisions of the district
courts under 28 U.S.C. § 1291.
24 Cranbury Brick Yard, LLC v. United States, 943 F.3d 701,
708 (3d Cir. 2019).

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may only affirm a grant of summary judgment if “there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.”25 We “view the facts
in the light most favorable to the non-moving party and [draw]
all reasonable inferences in that party’s favor.”26 “A
factual dispute is material if it might affect the outcome of the
suit under the governing law.”27 A dispute regarding a material
fact is genuine only if the evidence at issue could permit a
reasonable jury to decide in favor of the nonmoving party.28
We only address Canada’s appeal of the District Court’s
grant of Grossi’s motion for summary judgment as to the
retaliation claims under Title VII, § 1981, the ADA, and the
FMLA. In granting the motion as to these claims, the District
Court found that Canada failed to show that Grossi’s
“nonretaliatory reason [for firing him] was pretextual.”29 After
reviewing the evidence, we conclude that the District Court
erred in finding that a reasonable jury could not find Grossi’s
reason pretextual. We thus reverse as to the four retaliation
claims and remand for further proceedings.
1. McDonnell Douglas Framework
25 Razak v. Uber Techs., Inc., 951 F.3d 137, 144 (3d
Cir.), amended, 979 F.3d 192 (3d Cir. 2020).
26 Scheidemantle, 470 F.3d at 538.
27 Razak, 951 F.3d at 144 (internal quotations omitted)
28 Halpern v. F.B.I., 181 F.3d 279, 287 (2d Cir. 1999).
29 Dist. Ct. Op. at 54-55; JA 16.

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Retaliation claims are cognizable under Title VII,30 §
1981,31 the ADA,32 and the FMLA.33 In McDonnell Douglas
Corp. v. Green,34 the Supreme Court established the analytical
framework that govern claims of allegations of retaliation for
engaging in protected activity under Title VII. Therefore,
Canada’s retaliation claims, which rely on circumstantial
evidence, are controlled by the three-step burden-shifting
framework established in McDonnell Douglas.35 We have also
applied this framework to other retaliation claims including
those in the ADA, and the FMLA.36
Under the first step of that framework, a plaintiff “must
establish a prima facie case by showing ‘(1) [that she engaged
in] protected employee activity; (2) adverse action by the
30 42 U.S.C. § 2000e–3(a) (“It shall be an unlawful
employment practice for an employer to discriminate against
any of his employees . . . because he has opposed any practice
made an unlawful employment practice by this subchapter, or
because he has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or
hearing under this subchapter.”).
31 CBOCS West, Inc. v. Humphries, 553 U.S. 442, 457 (2008)
(holding that § 1981 “encompasses claims of retaliation”).
32 42 U.S.C.A. § 12203(a) (“No person shall discriminate
against any individual because such individual has opposed
any act or practice made unlawful by this chapter or because
such individual made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or
hearing under this chapter.”).
33 29 C.F.R. § 825.220(c) (describing the FMLA’s prohibition
against “retaliating against an employee . . . for having
exercised or attempted to exercise FMLA rights.”).
34 411 U.S. 792 (1973).
35 Moore v. City of Philadelphia, 461 F.3d 331, 342 (3d
Cir.2006).
36 Stewart v. Rutgers, The State Univ., 120 F.3d 426, 432 (3d
Cir. 1997) (applying McDonnell Douglas to § 1981 claim);
Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 187 (3d
Cir. 2003) (applying McDonnell Douglas to ADA retaliation
claim); Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691
F.3d 294, 302 (3d Cir. 2012) (applying McDonnell Douglas
to FMLA retaliation claim).

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employer either after or contemporaneous with the employee’s
protected activity; and (3) a causal connection between the
employee’s protected activity and the employer’s adverse
action.’”37 Upon making these showings, the employer then,
under step two, has the burden of producing evidence that
“present[s] a legitimate, non-retaliatory reason for having
taken the adverse action.”38 If the employer meets this burden,
the burden then shifts “back to the plaintiff to demonstrate that
‘the employer’s proffered explanation was false, and that
retaliation was the real reason for the adverse employment
action.’”39
Here, the District Court granted summary judgment to
Grossi because it held that Canada failed to successfully rebut
Grossi’s proffered reason for searching his cellphone. In the
rebuttal, Canada attacked Grossi’s motivation for the search,
arguing that its explanation for engaging in the search was
unbelievable. The District Court rejected this argument
explaining that it “relate[s] to the propriety of the search of
[Canada’s] cellphone, not whether [Grossi] terminated
[Canada’s] employment for appearing to solicit prostitutes
while clocked in and on company property.”40 The District
Court therefore reasoned that the motivation behind the search
and Grossi’s explanation for engaging in the search had no
bearing on the pretext analysis. We disagree.
2. An employer’s motivation for investigating an
employee can be relevant to pretext.
To defeat summary judgment at the third McDonnell
Douglas step, the “plaintiff must point to some evidence, direct
or circumstantial, from which a factfinder could reasonably
either (1) disbelieve the employer’s articulated legitimate
reasons; or (2) believe that an invidious discriminatory reason
was more likely than not a motivating or determinative cause
37 Daniels v. Sch. Dist. of Phila., 776 F.3d 181, 193 (3d Cir.
2015) (alteration in original) (quoting Marra v. Phila. Hous.
Auth., 497 F.3d 286, 300 (3d Cir. 2007)).
38 Daniels, 776 F.3d at 193.
39 Id. (quoting Moore, 461 F.3d at 342).
40 Dist. Ct. Op. at 56; JA 18.

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of the employer’s action.”41 An employee may meet her
burden by “painting the [employer’s articulated reasons] as
weak, implausible, contradictory, or incoherent.”42 Or, for
example, “by showing that the employer in the past had
subjected [the employee] to unlawful discriminatory treatment,
[or] that the employer treated other, similarly situated persons
not of his protected class more favorably.”43
At the summary judgment stage, “[w]e consider ‘a
broad array of evidence,’” including “antagonism by the
employer, inconsistencies in the reasons the employer gives for
its adverse action, and any other evidence suggesting that the
employer had a retaliatory animus when taking the adverse
action.”44 If the plaintiff makes this showing, summary
judgment is improper because the plaintiff has raised “a factual
issue regarding the employer’s true motivation for
discharge.”45
41 Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994).
42 Id. at 765.
43 Id.
44 Daniels, 776 F.3d at 196 (quoting LeBoon v. Lancaster
Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 232 (3d Cir. 2007)).
Although these statements in Daniels were made with respect
to the prima facie case of discrimination, we have maintained
that “evidence supporting the prima facie case is often helpful
in the pretext stage and nothing about the McDonnell
Douglas formula requires us to ration the evidence between
one stage or the other.” Farrell v. Planters Lifesavers Co.,
206 F.3d 271, 286 (3d Cir. 2000). See also Jalil v. Avdel
Corp., 873 F.2d 701, 709 n.6 (3d Cir. 1989) (“Although this
fact is important in establishing plaintiff’s prima facie case,
there is nothing preventing it from also being used to rebut
the defendant’s proffered explanation. As we have observed
before, the McDonnell Douglas formula does not
compartmentalize the evidence so as to limit its use to only
one phase of the case.”). Accordingly, our statement that we
can consider “any other evidence” suggesting the employer
acted out of retaliatory animus applies equally to the
Canada’s demonstration of pretext.
45 Jalil, 873 F.2d at 707.

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We look at the totality of the circumstances to determine
whether an employer’s proffered nondiscriminatory reason is
pretext for a discriminatory motive. We explained the
necessity for this in Aman v. Cort Furniture Rental Corp.46
There, we described how “[d]efendants of even minimal
sophistication will neither admit discriminatory animus or [sic]
leave a paper trail demonstrating it.”47 This is no less true for
employers who retaliate against employees who have filed
complaints of discrimination or accused an employer of racial
bias. Indeed, a contrary rule would not only immunize
employers who retaliate against employees only after they
stumble upon something that would justify their termination; it
would also incentivize such retaliatory forays.
Although the point could certainly have been pled with
greater clarity, Canada alleged “that he was subjected to
pretextual discipline . . . and terminated a second time . . . in
retaliation for his complaints of race discrimination”48 and
“disability discrimination/retaliation.”49 His complaint sets
forth a factual basis for the allegation.
Canada relies in part upon Hobgood v. Illinois Gaming
Board50 in arguing the search of his cellphone was undertaken
only in the hope that it would disclose something that would
justify terminating him in retaliation for filing complaints
alleging illegal discrimination. In Hobgood, the Court of
Appeals for the Seventh Circuit concluded that an employer’s
motive in investigating an employee was relevant to
establishing pretext under Title VII.51 Hobgood worked for the
Illinois Gaming Board and assisted a colleague in filing a
discrimination charge against the Board.52 Once the Board
determined that Hobgood was aiding the fellow employee, it
launched a series of investigations into Hobgood’s behavior.53
46 85 F.3d 1074 (3d Cir. 1996).
47 Id. at 1082 (alteration in original) (quoting Riordan v.
Kempiners, 831 F.2d 690, 697 (7th Cir. 1987)).
48 JA 89.
49 JA 96.
50 731 F.3d 635 (7th Cir. 2013).
51 See id. at 637.
52 Id. at 637, 641.
53 Id. at 638–39.

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Although many of the initial charges the Board subsequently
brought against Hobgood were not substantiated, the
investigation uncovered evidence that Hobgood had violated a
Board policy.54 Based upon that violation, the Board
terminated Hobgood.55 The district court granted summary
judgment in favor of the Board in Hobgood’s subsequent suit
under Title VII.56 At the third step of McDonnell Douglas, the
court rejected Hobgood’s claim that he was fired in retaliation
for assisting his colleague.57 The court concluded that
Hobgood was not fired because of his protected activity, but
because of the infraction uncovered by the Board’s
investigation.58
The Court of Appeals for the Seventh Circuit reversed.59
Despite the fact that the Board relied on Hobgood’s violation
of policy, the court held that “[t]he initiation and scope of [the]
investigation . . . support[ed] an inference that the investigation
was not prompted by the defendants’ belief that Hobgood had
[violated Board policy], but was instead prompted by the
defendants’ desire to construct a case for Hobgood’s
termination after they discovered that he had been helping [his
friend] with his lawsuit” against the Board.60 The court
reasoned that Hobgood had presented a “‘convincing mosaic’
of circumstantial evidence,” which “when taken as a whole and
viewed in a light favorable to Hobgood’s case, could convince
a reasonable jury that he was the victim of unlawful
retaliation.”61 We believe the same analysis is pertinent here
and would allow a jury to conclude that Grossi’s stated reason
for firing Canada was a pretext intended to thwart any
suggestion of illegal retaliation. The evidence here clearly
supports a conclusion that Grossi was looking for something
54 Id. at 640.
55 Id. at 641.
56 Id.
57 Id. at 637.
58 Id. (“The court reasoned that the Gaming Board fired
Hobgood not because he had assisted Gnutek but because the
‘nature’ of that assistance consisted of providing confidential
information.” Id. at 641).
59 Id.
60 Id. at 646.
61 Id. at 643 (citations omitted).

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that would justify terminating Canada and that it undertook that
search because of Canada’s complaints of discrimination.
Grossi attempts to distinguish Hobgood by focusing on
several differences between that case and the circumstances
here, including the fact that “[t]he investigator [there]
conducted a far-reaching investigation into all aspects of the
plaintiff’s work practices.”62 Although we agree that there are
distinctions between the circumstances in Hobgood and the
circumstances before us, we believe they are distinctions
without a difference. Moreover, we will not adopt a rule that
would countenance limited retaliatory searches and only
subject an employer to Title VII liability for more sweeping
incursions. For the reasons we have already explained, we
reject a rule that incentivizes employers to dig up reasons to
fire an employee who has engaged in protected activity, and
then immunizes them from suit based upon a subsequent
fortuitous discovery of grounds for termination.
Here, as in Hobgood, there is a “‘convincing mosaic’ of
circumstantial evidence,”63 which, when taken as a whole and
viewed in a light favorable to Canada’s case, could convince a
reasonable jury that he was the victim of unlawful retaliation.64
In other words, the evidence could support a finding that the
search itself was retaliatory.
3. There are genuine issues of fact precluding
summary judgment on Canada’s claim of
retaliation.
As explained above, for Canada to survive summary
judgment at the third McDonnell Douglas step, he must show
that the evidence would allow a jury to reasonably “(1)
disbelieve [Grossi’s] articulated legitimate reasons; or (2)
believe that an invidious discriminatory reason was more likely
than not a motivating or determinative cause of [Grossi’s]
action.”65 The evidence here could allow a reasonable jury to
conclude either or both. He met that burden by showing
Grossi’s purported reasons for searching his cell phone are
62 Appellee Br. at 20.
63 Hobgood, 731 F.3d at 643.
64 See id.
65 Fuentes, 32 F.3d at 764.

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weak, implausible, contradictory, incoherent, and more likely
motivated by retaliation.66 Moreover, he has shown that Grossi
“treated other, similarly situated persons not of his protected
class more favorably.”67 Accordingly, summary judgment is
inappropriate.
The first piece of evidence that unravels Grossi’s
expressed reasons for searching the phone is its own employee
conduct policy. The District Court explained how this policy
bolsters Grossi’s argument because it allows for searches of an
employee’s property. But the District Court failed to
appreciate that this search actually violated that policy. The
policy allows for searches if Grossi “has reasonable suspicion
that an individual is involved in misconduct on Company
premises.”68 However, while Grossi alleges to have moved
Canada’s locker because it obstructed the view of a
surveillance camera, Grossi employees could not provide any
legitimate basis for searching Canada’s locker, let alone the
cellphone inside the locker.
This is clear from the testimony from Grossi
management, contradicting any reliance on this policy.
Edward Thompson, Canada’s direct supervisor, “testified that,
prior to plaintiff’s termination, he did not have any reason to
suspect that [Canada] committed any type of misconduct on
company premises.”69 Similarly, Osorio, Grossi’s director of
human resources, “testified that she d[id] not remember
whether ‘there was any reason to suspect that [Canada] was
involved in any type of misconduct on company premises
before his separation.’”70 We consider this in context with the
evidence that John Grossi, one of the company’s owners,
approached Canada threatening that, if he did not drop the
lawsuit, Grossi would “just have other African-American
employees say the opposite of what [Canada’s] saying.”71 The
threat, made to intimidate Canada into dropping his lawsuit,
further weakens Grossi’s argument.
66 See id. at 765.
67 See id.
68 JA 11.
69 JA 11–12.
70 JA 11.
71 JA 153.

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Canada has also shown the overall weakness of Grossi’s
argument that the text messages were searched to see if the
phone was Grossi’s property. Osorio testified in her deposition
that the cellphone they found was a Samsung (the kind Grossi
issued to employees) and cellphones had recently “gone
missing.”72 But the veracity of this claim is suspect. Even
assuming there is some relevance to whether this was a
company phone, as Canada points out, there were many easier,
less intrusive, and far more reliable and appropriate ways for
Osorio to determine whether the phone inside the locker was a
company phone. For example, Grossi keeps a running list of
names of employees who were issued company phones, along
with the phones’ respective serial numbers and device IDs.
She could have easily located the serial number or device ID
of Canada’s phone and cross-referenced it with the data on the
list. Thus, it is not at all clear on this record how text messages
could establish if the cellphone was a company phone.
A jury is much more likely to view that kind of search
as indicative of looking for something that would justify firing
Canada rather than trying to figure out if it was a company
phone. In addition, Canada claims that his phone was not the
same Samsung model that Grossi issued to its employees. That
would further support a finding that Grossi employees were
trying to dig up dirt on Canada and not trying to ascertain if it
was a company phone. Canada also asserts that Osorio would
have known this because “she assists with deployment of
company phones to employees and,” as mentioned before,
“maintains a phone list identifying names, numbers, and device
IDs for everyone who has a company phone.”73
Despite the lack of a coherent rationale for searching the
phone, Osorio searched through more than a year’s worth of
personal text messages before discovering the messages for
which Canada was allegedly fired. The breadth of this search
alone undermines the plausibility that Grossi was trying to see
if the phone belonged to the company. As we have explained,
a jury could find that reading text messages from this far back
in time is more suggestive of a search to find an excuse to fire
72 JA 303.
73 Appellant Br. at 46 (citing JA 284-85, 344-45).

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Canada in retaliation for his activity protected under Title VII,
§ 1981, the ADA, and FMLA.
There is also evidence to support a finding that Grossi
treated other employees more favorably. For example, Osorio
testified that she was unaware of any other such searches of
company lockers and had never searched any other employee’s
cellphone or personal items. Moreover, an argument can be
made that the lockers did not require emptying before being
moved, as alleged by Grossi, since a forklift was used.
III.
For these reasons, we reverse the District Court’s grant
of summary judgment to Grossi on Canada’s retaliation claims
under Title VII, § 1981, the ADA, and the FMLA; and we
remand to the District Court for further proceedings consistent
with this opinion.

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